This -- among many, many other reasons -- is why you should not visit a prostitute, and surely should not pull into a back alley to receive your promised services.
Because you might well get shot and killed.
Tuesday, August 30, 2011
Monday, August 29, 2011
In Re Cryer (Cal. Ct. App. - August 29, 2011)
It's yet another case involving that actor from Two and a Half Men. More contentious disputes between him and his ex-wife. More extensive litigation. More and more about who owes what and the condition of their child. Fighting and fighting and fighting.
Except for one thing. It's not this guy. It's the other one. Him.
He's still on the show. But he's not doing nearly as well in court. He loses. Both below and on appeal.
Who's crying now . . . .
Except for one thing. It's not this guy. It's the other one. Him.
He's still on the show. But he's not doing nearly as well in court. He loses. Both below and on appeal.
Who's crying now . . . .
In Re Hill (Cal. Ct. App. - August 29, 2011)
I was initially skeptical. A minor tells her friend that her stepfather has repeatedly molested her. Ultimately the police are called. The minor recants, including at trial, but that may be due to pressure from her mother. At trial, the stepfather is convicted.
Did I think the stepfather was definitely guilty? No. But I wasn't on the jury. Seems like a reasonable jury could come out either way. Maybe the stepdaughter was making up the story to get sympathy. Or maybe she was indeed molested. That's why we have juries.
I was, however, skeptical about the stepfather's claim on habeas that he had ineffective assistance of counsel. It seemed to me that the defense attorney did a pretty good job of getting the minor to recant and casting doubt on her story. Sure, the defendant was still convicted. But even a good defense fails most of the time. And, yes, the attorney was employed by the Pacific Law Center. Personally, I would tend not to employ firms who heavily advertise on television when I'm facing over a decade in prison. But here, despite what I'm certain was a hectic caseload, it seemed that the defense attorney did a decent job.
But then I read on, and Justice Benke convinced me that my initial impressions were wrong. There were two pieces of evidence that seemed pretty important here. First, the prosecution expert testified that even though the minor showed no evidence of trauma or physical changes upon a sexual examination, that wasn't unusual, since even if she had had sex with her stepfather 100-200 times (as she claimed) one wouldn't expect to see any tearing, injuries, etc. That seemed plausible to me. But on habeas, the defense has an expert that says that there may not be any tearing, but that you can nonetheless definitely tell if someone's either a virgin (as the stepdaughter claimed at trial) or if she's had sex hundreds of times. That "that is the whole point of using a colposcope." And the expert says it in a way that makes it sound very much true, not merely something said by a hired gun. The defense counsel -- to his credit -- doesn't try to make up an excuse for not getting such an examination, and it might well have made a difference. If the exam showed that the stepdaughter had not, in fact, had a plethora of sex, that would tend to support substantially the stepfather's defense.
Now maybe the defense counsel didn't order an examination because he knew defendant was in fact guilty. But there's no evidence of that. And if, in fact, the counsel simply didn't investigate this point, that seems like a pretty big error. One that might well have made a difference at trial.
So that was one issue about which I didn't know much initially but that seemed like it might well have justified a new trial once the Court of Appeal let me know the scoop. The second point just seemed weird from the get go.
The stepfather had herpes. The stepdaughter did not. That seemed strange to me. I'd have thought that if a guy with herpes has sex with someone several hundred times, that'd likely be passed on. But the prosecution expert testified that there'd only be a five to ten percent chance of catching it even after all that sex. Really?! That just didn't comport with my (admittedly uninformed) understanding of the probabilities. But the defense counsel consulted with an expert who admitted that transmission of herpes wouldn't be "certain" even after all that sex, and so the prosecution expert went essentially unrebutted.
The truth, however, seems quite a bit different. There's a defense expert on habeas who says that the true rate is around fifty percent each time. That seems high to me; the Court of Appeal seems to think that this means that the rate of transmission is virtually certain (i.e., 50% each time for 150 times = virtually 100%), though we may be ships passing in the night here; I'm not sure the expert means getting herpes as opposed to being exposed to the herpes virus. Regardless, it does seem like the five to ten percent figure is wrong, and the defense counsel's failure to provide contradictory information a total (and inexplicable) mistake.
Assume, for example, that the true transmission rate is five percent; i.e., every time you have sex with someone with herpes, you've got a five percent chance of catching it. My gut tells me it's higher, and I'm pretty confident most people act like it's indeed higher, but let's be conservative. If you have sex with a carrier 150 times, the chances are less than one in a thousand that you'll remain uninfected. Which, in the context of this case, sounds like it would certainly create reasonable doubt, no? So this seems vital, and I don't see why the defense attorney couldn't put on some competent testimony here.
Does that mean that the defendant is totally innocent? I don't know. Because I don't know the true rates here. But the point is that his jury didn't either. That seems to me to justify a new trial. Because this is not a case where the evidence is crystal clear. Far from it. And before we put a guy away for 13 years, I think we need to have more certainty in the process than we do here.
Did I think the stepfather was definitely guilty? No. But I wasn't on the jury. Seems like a reasonable jury could come out either way. Maybe the stepdaughter was making up the story to get sympathy. Or maybe she was indeed molested. That's why we have juries.
I was, however, skeptical about the stepfather's claim on habeas that he had ineffective assistance of counsel. It seemed to me that the defense attorney did a pretty good job of getting the minor to recant and casting doubt on her story. Sure, the defendant was still convicted. But even a good defense fails most of the time. And, yes, the attorney was employed by the Pacific Law Center. Personally, I would tend not to employ firms who heavily advertise on television when I'm facing over a decade in prison. But here, despite what I'm certain was a hectic caseload, it seemed that the defense attorney did a decent job.
But then I read on, and Justice Benke convinced me that my initial impressions were wrong. There were two pieces of evidence that seemed pretty important here. First, the prosecution expert testified that even though the minor showed no evidence of trauma or physical changes upon a sexual examination, that wasn't unusual, since even if she had had sex with her stepfather 100-200 times (as she claimed) one wouldn't expect to see any tearing, injuries, etc. That seemed plausible to me. But on habeas, the defense has an expert that says that there may not be any tearing, but that you can nonetheless definitely tell if someone's either a virgin (as the stepdaughter claimed at trial) or if she's had sex hundreds of times. That "that is the whole point of using a colposcope." And the expert says it in a way that makes it sound very much true, not merely something said by a hired gun. The defense counsel -- to his credit -- doesn't try to make up an excuse for not getting such an examination, and it might well have made a difference. If the exam showed that the stepdaughter had not, in fact, had a plethora of sex, that would tend to support substantially the stepfather's defense.
Now maybe the defense counsel didn't order an examination because he knew defendant was in fact guilty. But there's no evidence of that. And if, in fact, the counsel simply didn't investigate this point, that seems like a pretty big error. One that might well have made a difference at trial.
So that was one issue about which I didn't know much initially but that seemed like it might well have justified a new trial once the Court of Appeal let me know the scoop. The second point just seemed weird from the get go.
The stepfather had herpes. The stepdaughter did not. That seemed strange to me. I'd have thought that if a guy with herpes has sex with someone several hundred times, that'd likely be passed on. But the prosecution expert testified that there'd only be a five to ten percent chance of catching it even after all that sex. Really?! That just didn't comport with my (admittedly uninformed) understanding of the probabilities. But the defense counsel consulted with an expert who admitted that transmission of herpes wouldn't be "certain" even after all that sex, and so the prosecution expert went essentially unrebutted.
The truth, however, seems quite a bit different. There's a defense expert on habeas who says that the true rate is around fifty percent each time. That seems high to me; the Court of Appeal seems to think that this means that the rate of transmission is virtually certain (i.e., 50% each time for 150 times = virtually 100%), though we may be ships passing in the night here; I'm not sure the expert means getting herpes as opposed to being exposed to the herpes virus. Regardless, it does seem like the five to ten percent figure is wrong, and the defense counsel's failure to provide contradictory information a total (and inexplicable) mistake.
Assume, for example, that the true transmission rate is five percent; i.e., every time you have sex with someone with herpes, you've got a five percent chance of catching it. My gut tells me it's higher, and I'm pretty confident most people act like it's indeed higher, but let's be conservative. If you have sex with a carrier 150 times, the chances are less than one in a thousand that you'll remain uninfected. Which, in the context of this case, sounds like it would certainly create reasonable doubt, no? So this seems vital, and I don't see why the defense attorney couldn't put on some competent testimony here.
Does that mean that the defendant is totally innocent? I don't know. Because I don't know the true rates here. But the point is that his jury didn't either. That seems to me to justify a new trial. Because this is not a case where the evidence is crystal clear. Far from it. And before we put a guy away for 13 years, I think we need to have more certainty in the process than we do here.
Friday, August 26, 2011
Young v. County of Los Angeles (9th Cir. - August 26, 2011)
"I stopped him for not wearing a seat belt, and when he exited his car to hand me his registration, I thought he might throw some broccoli at me. So I beat him with my baton and pepper sprayed him."
That's just not a good enough excuse.
It's a good thing that police often video/audio tape their stops. Sometimes they help prove that a motorist is acting unreasonably. Sometimes they help prove that the officer is doing so. Here's a potential case of the latter. The officer started out very nicely, asking "please" and doing a good job. But then the motorist starts getting the treatment.
For example, when the motorist complains that his handcuffs are too tight, the officer says: "Well, you know what, that’s part of not going along with the program." The officer here was unhappy that the motorist didn't get back in his car like the officer requested, whereas the motorist wanted to eat his broccoli on the street during the stop. You wouldn't think that a minor dispute like that -- with no threats of force whatsoever -- would lead to a confrontation. But it did.
That's just not a good enough excuse.
It's a good thing that police often video/audio tape their stops. Sometimes they help prove that a motorist is acting unreasonably. Sometimes they help prove that the officer is doing so. Here's a potential case of the latter. The officer started out very nicely, asking "please" and doing a good job. But then the motorist starts getting the treatment.
For example, when the motorist complains that his handcuffs are too tight, the officer says: "Well, you know what, that’s part of not going along with the program." The officer here was unhappy that the motorist didn't get back in his car like the officer requested, whereas the motorist wanted to eat his broccoli on the street during the stop. You wouldn't think that a minor dispute like that -- with no threats of force whatsoever -- would lead to a confrontation. But it did.
Thursday, August 25, 2011
Chism v. Washington State (9th Cir. - August 25, 2011)
It's a fairly straightforward question. Someone uses a credit card to create and pay for a couple of months of a web site. That web site has child pornography on it. The web site employs nonsense URL and contact information; for example, one of the sites is http://foelonipwin-cmezixecvom.us/ and the contact e-mail is
qek9pj8z9ec@yahoo.com. Whoever created the sites knew the correct name, address, and credit card number of the owner of the credit card, though when s/he input the contact information for the owner, s/he alternately said s/he lived in Chile (in zip code "ucc16") or Bolivia (in zip code "nf897"). We're able to trace the IP addresses allegedly used to access the site and create the relevant e-mail accounts; they lead to two computers in the same state as the owner of the credit card but hundreds of miles away.
So there are two possibilities. One is that the credit card owner used his own credit card to create the sites (with his own name) but then input nonsense contact information and used proxy servers to access the sites and e-mails. The other possibility is that someone stole the credit card number and used it (alongside proxy servers) to create the sites. We check with the credit card company, and they tell us that the two charges on the card are relatively recent and that the credit card owner has not yet claimed that any charges on the card are fraudulent.
Assume all that information is disclosed. Should a magistrate judge authorize a warrant permitting the search of the credit card owner's home (and computer)? Does it create probable cause to arrest the owner of the credit card? In short, does that information create a "fair probability" that the owner of the credit card was involved in creating child pornography?
Judges Paez and Betty Fletcher say "No." Judge Ikuta says "Yes."
Everyone agrees, by the way, as to the truth. The guy's credit card had been stolen and his computer hacked. He didn't do anything wrong. At all.
qek9pj8z9ec@yahoo.com. Whoever created the sites knew the correct name, address, and credit card number of the owner of the credit card, though when s/he input the contact information for the owner, s/he alternately said s/he lived in Chile (in zip code "ucc16") or Bolivia (in zip code "nf897"). We're able to trace the IP addresses allegedly used to access the site and create the relevant e-mail accounts; they lead to two computers in the same state as the owner of the credit card but hundreds of miles away.
So there are two possibilities. One is that the credit card owner used his own credit card to create the sites (with his own name) but then input nonsense contact information and used proxy servers to access the sites and e-mails. The other possibility is that someone stole the credit card number and used it (alongside proxy servers) to create the sites. We check with the credit card company, and they tell us that the two charges on the card are relatively recent and that the credit card owner has not yet claimed that any charges on the card are fraudulent.
Assume all that information is disclosed. Should a magistrate judge authorize a warrant permitting the search of the credit card owner's home (and computer)? Does it create probable cause to arrest the owner of the credit card? In short, does that information create a "fair probability" that the owner of the credit card was involved in creating child pornography?
Judges Paez and Betty Fletcher say "No." Judge Ikuta says "Yes."
Everyone agrees, by the way, as to the truth. The guy's credit card had been stolen and his computer hacked. He didn't do anything wrong. At all.
Wednesday, August 24, 2011
In Re Marriage of La Moure (Cal. Ct. App. - August 25, 2011)
I'm not especially interested in the legal issue here, which involves the appropriate level of notice one has to give when levying on an IRA account. But I was struck by the facts of the case. Which are not unusual but nonetheless caught my eye.
The parties were married for ten years. Not unusual. Two kids. Average. Got divorced. Happens. The marriage was presumably troubled; upon filing the dissolution action, the court ordered the mother to enter immediately a residential alcohol treatment program, and also ordered the father to attend anger management classes. Custody was shared 50/50. Those orders may give some insight into the parties.
Father's an attorney: a sole practitioner. He's ordered to pay $4000 in monthly child support and $3500 a month in spousal support. That seems incredibly high to me, particularly given shared custody. Ninety thousand a year?
Of course, it's entirely possible that a sole practitioner in San Bernadino would make the several hundred thousand dollars a year that would justify such an award. But I don't imagine that's all that common. Still, I assume the court got it right. I was just surprised.
I was also surprised at how the attorney responded to these orders. Was a suprised that he repeatedly filed motions to modify or reduce this amount? No. Not at all. He's a lawyer. We often focus on our own cases -- potentially to our detriment. So that's not shocking.
What is surprising, however, is that he repeatedly doesn't pay this support. During the same year he filed for dissolution he's already $14,000 behind, and ordered to pay. The next year the court enters another order for him to pay arrears -- this time, over $21,000. Then, a couple years later, another order to pay $4000 in overdue support, and later that year, another $30,000. All of which leads to the contested levy of his IRA.
Is it surprising to me that someone doesn't pay support? Of course not. Happens all the time. Is it slightly more surprising when that person's an attorney? Yes. You'd think they'd know better. That such an approach to support obligations is more than a little counterproductive. And that the consequences of such an attitude includes the suspension of your Bar license. Which, a little research reveals, is precisely what eventually happened to Father.
Family law. It's a crazy field.
The parties were married for ten years. Not unusual. Two kids. Average. Got divorced. Happens. The marriage was presumably troubled; upon filing the dissolution action, the court ordered the mother to enter immediately a residential alcohol treatment program, and also ordered the father to attend anger management classes. Custody was shared 50/50. Those orders may give some insight into the parties.
Father's an attorney: a sole practitioner. He's ordered to pay $4000 in monthly child support and $3500 a month in spousal support. That seems incredibly high to me, particularly given shared custody. Ninety thousand a year?
Of course, it's entirely possible that a sole practitioner in San Bernadino would make the several hundred thousand dollars a year that would justify such an award. But I don't imagine that's all that common. Still, I assume the court got it right. I was just surprised.
I was also surprised at how the attorney responded to these orders. Was a suprised that he repeatedly filed motions to modify or reduce this amount? No. Not at all. He's a lawyer. We often focus on our own cases -- potentially to our detriment. So that's not shocking.
What is surprising, however, is that he repeatedly doesn't pay this support. During the same year he filed for dissolution he's already $14,000 behind, and ordered to pay. The next year the court enters another order for him to pay arrears -- this time, over $21,000. Then, a couple years later, another order to pay $4000 in overdue support, and later that year, another $30,000. All of which leads to the contested levy of his IRA.
Is it surprising to me that someone doesn't pay support? Of course not. Happens all the time. Is it slightly more surprising when that person's an attorney? Yes. You'd think they'd know better. That such an approach to support obligations is more than a little counterproductive. And that the consequences of such an attitude includes the suspension of your Bar license. Which, a little research reveals, is precisely what eventually happened to Father.
Family law. It's a crazy field.
Tuesday, August 23, 2011
Aroa Marketing v. Hartford Ins. (Cal. Ct. App. - August 23, 2011)
It's an insurance coverage case that involves whether a lawsuit that alleges infringement of the right of publicity is covered by a insurance policy that covers violations of the right to privacy (holding: yes) and whether any such coverage is excluded by an exclusion that bars coverage of claims involving intellectual property (holding: also yes). So, in short, an insurance coverage case, which would normally be of interest only to those in that field.
Which is indeed the case. The only difference being that the underlying lawsuit involved a claim by an actress, Tara Radcliffe, that the defendant used her image (after she did an excercise video for them) in excess of their contractual rights. Which got me thinking about whether I had ever seen Ms. Radcliffe in anything (answer: no), what it must be like to be a struggling actress (answer: difficult, very), and what kind of information one needs to put on the internet when one's desperate for work in that field. The answers are here and here.
In short, it's not a field for the shy or faint of heart.
Which is indeed the case. The only difference being that the underlying lawsuit involved a claim by an actress, Tara Radcliffe, that the defendant used her image (after she did an excercise video for them) in excess of their contractual rights. Which got me thinking about whether I had ever seen Ms. Radcliffe in anything (answer: no), what it must be like to be a struggling actress (answer: difficult, very), and what kind of information one needs to put on the internet when one's desperate for work in that field. The answers are here and here.
In short, it's not a field for the shy or faint of heart.
MCRA v. Kaufman (Cal. Ct. App. - August 23, 2011)
What are the chances that a pro per litigant challenging getting a ticket for running a stop sign will result in a published opinion?
About the same as a 5.9 earthquake in Richmond, Virginia.
About the same as a 5.9 earthquake in Richmond, Virginia.
Monday, August 22, 2011
Sterns v. Ticketmaster (9th Cir. - August 22, 2011)
I guess today has a theme. "It seems so obvious, yet it's not." The disconnect between intuitive justice and the accomplishment of that goal in practice. Particularly in light of the procedural and substantive obstacles that the judiciary sometimes puts in the way.
Take this case. It is, in my view, a pretty simple one. Ticketmaster sold (and still sells) tickets, and had a pretty good tie-in going with EPI. Basically, after you bought a ticket, the confirmation screen would say "Get $25 cash back on your next Ticketmaster Purchase. Click here for details." Then there's a "Continue" button. You've probably seen things like that on Travelocity or a whole bunch of other web sites as well. Who wouldn't want to get a free $25, after all?
Anyone who hit "Continue" would then get taken to a new screen, and if they entered their e-mail address twice and hit "Yes", they were signed up for a program that automatically charged the customer a monthly fee. The customer didn't have to enter their credit card information or any other data; all this stuff was sent automatically by Ticketmaster. Was there a tiny portion of the screen that said "We'll be charging you $10 [or whatever] for the rest of your life for this meaningless service that virtually no one ever uses?" I imagine there was. But it was carefully hidden. Which is also why they didn't want you to have to reenter your credit card information. Because then you'd know that you were actually buying something rather than getting it for free.
Or at least that's what plaintiffs claim. A claim that seems quite plausible to me, having seen several of these schemes myself. Do some people purchase these things knowing what they're buying? Absolutely. I have no doubt. Do many others click "Yes" having no idea that they're being charged for it, and are these sites expressly designed to take advantage of this fact? Completely. I have absolutely no doubt.
So plaintiffs file a class action, claiming that the defendants have engaged in unfair competition. That claim seems reasonable. Maybe the web site's disclosures are accurate, of course. But maybe they're not. A judge or jury would presumably apply the relevant law and figure out the scoop. If the sites are unfair, the people who are injured should get their money back. If the sites are okay, the defendants get to keep what's fair. Again, we could figure this out before law school. That's justice.
But, of course, in practice, it's not nearly that simple. The trial court refuses to certify the class. On a plethora of grounds, some of which the Ninth Circuit thinks might be okay. The district court says that the named representatives may not be typical of the class, and the Ninth Circuit agrees that there might be a class definition problem. Ultimately the Ninth Circuit affirms the dismissal of a number of the claims but remands to allow the district court to consider a recently-decided California case that interpreted the UCL (Tobacco II) to see whether, in fact, a properly-defined class might be certified.
Both the district court and (to a slightly lesser extent) the Ninth Circuit are profoundly concerned with the fact that some class members might well have gotten what they wanted. For example, Judge Fernandez's opinion says that it might have been okay (had plaintiffs gotten their act together in time) to certify a class limited to customers who told defendants that they never intended to enroll in the service at the time they cancelled their membership in the program, but that a larger class of all subscribers might be profoundly troubling. Even a class limited to those who never used the program (despite paying for it), Judge Fernandez argued, might well still fail the typicality requirement, since some people might well have deliberately enrolled in the thing but simply never got around to using it. Maybe they were lazy. Maybe they died. Who knows? We can't have people like that in the class, and no class definition timely proposed by the plaintiffs gets around this problem.
This seems to me to conflict not only with a common sense approach to litigation, but also with precedent. A class definition doesn't have to be perfect. It can include people who might not recover. Take an extreme case, for example. Imagine that a company has a web site that says, in its entirety: "Would you like a candy bar? If so, give us your credit card number so we can verify your identity and we'll ship you one." Which then charges your credit card $20 without disclosing the charge. That's perfect for a class action, right? A class should (and would) be certified for everyone who got charged the $20. Are there some people in the class who weren't injured because they would, in fact, have paid $20 even if the charge had been disclosed? Sure. Are there some people who aren't injured because they went bankrupt or failed to pay their credit card anyway? Absolutely. Are there some people who might have read the web site and assumed that they were being charged $20 -- or even $40 -- for the candy bar? Possibly. Are there some people who did not care at all about a tiny little $20 charge (Bill Gates?), or who thought it was going to a good cause anyway so wouldn't complain? Seems plausible.
But we'd still certify the class. Just because the class contains people who might not be injured doesn't mean the class fails the typicality prong. Sure, if a huge number of people in the class got what precisely what they bargained for then we've got a typicality problem. But that's not the Ticketmaster case, in which there's little doubt that the alleged failures to disclose concerned a material condition of the contract (the relevant state law standard) and might well have led a reasonable consumer to not know what s/he was purchasing. That's not enough to refuse to certify a class.
It's no different than routinely-certified securities class actions. Are there some members of the class who purchased stock in individual sales, or without reference to market prices, or who already knew about the (alleged) fraud? Sure. And at the damages stage, we can refuse to pay those people. But we don't refuse to certify the class.
The same is true here. There might well be people, for example, who used the coupons. That might be some decent evidence that they in fact intended to purchase the program, and hence weren't deceived. Those members of the class might not get paid at the end of the day -- though some of them might get paid at least a portion; e.g., if they could establish that, sure, they used the coupons, but only b/c they had already been charged, and then they immediately cancelled the thing, etc. The point is that it's a factual issue, just as it is in non-consumer class actions. Not everyone gets paid the same amount, and not every member of the class gets paid at all. That doesn't defeat the availability of class relief.
Nor should it, by the way. What's the alternative, after all? Does the candy bar seller really get to keep the millions he rips off from other people, and only have to refund the $20 to those few people who can afford to spend $300+ to file a $20 lawsuit? You mean to tell me that because we can't precisely define exactly the subset who got injured the defendant totally gets away with it? Come on.
Nor is this an exaggeration. Plaintiffs here, for example, see the handwriting on the wall and attempt (albeit belatedly) to define the class so it only consists of people who (1) cancelled the service, and (2) said at the same time as (1) that they didn't knew they had signed up. That's an incredibly small number of people -- though, given the facts, probably not a trivial number. But it means that plenty of people don't get to recover money that was (allegedly) illegally taken from them. People who simply screamed "Cancel my service you bastards!" don't get to recover. People who didn't feel like giving a reason. Lots and lots of people. Sure, you've defined the class so that virtually everyone was indeed injured. (Even then, the representative may not be typical -- after all, some people who said they cancelled b/c they didn't know what they were ordering may have in fact known after all.) But in doing so you've excluded giving compensation to a huge number of people who were in fact injured -- indeed, my guess is that you've excluded most of the people who were in fact injured. That seems neither required by the typicality rules nor the normative principle we should prefer.
Yes, at some point, we have to separate the damaged from the nondamaged. We can, and should, do that at the damage stage, at least when, as here, there's ample reason to believe that a material portion of the class -- defined as people who ordered the service -- were in fact damaged. That some of these people may not be damaged shouldn't mean that no one, or virtually no one, gets to recover. Otherwise you're creating a rule that has the practical effect of letting defendants successfully scam people with little recourse.
So here's another case where I think the right answer is the intuitive one. And even though the decision from the Ninth Circuit comes close to being the right one -- and is certainly closer than what the district court did -- I think there's definite room for improvement.
It's a good case. There's a real problem here. One the legal system is designed to solve. And the judiciary is making rules here that make things worse, not better.
Take this case. It is, in my view, a pretty simple one. Ticketmaster sold (and still sells) tickets, and had a pretty good tie-in going with EPI. Basically, after you bought a ticket, the confirmation screen would say "Get $25 cash back on your next Ticketmaster Purchase. Click here for details." Then there's a "Continue" button. You've probably seen things like that on Travelocity or a whole bunch of other web sites as well. Who wouldn't want to get a free $25, after all?
Anyone who hit "Continue" would then get taken to a new screen, and if they entered their e-mail address twice and hit "Yes", they were signed up for a program that automatically charged the customer a monthly fee. The customer didn't have to enter their credit card information or any other data; all this stuff was sent automatically by Ticketmaster. Was there a tiny portion of the screen that said "We'll be charging you $10 [or whatever] for the rest of your life for this meaningless service that virtually no one ever uses?" I imagine there was. But it was carefully hidden. Which is also why they didn't want you to have to reenter your credit card information. Because then you'd know that you were actually buying something rather than getting it for free.
Or at least that's what plaintiffs claim. A claim that seems quite plausible to me, having seen several of these schemes myself. Do some people purchase these things knowing what they're buying? Absolutely. I have no doubt. Do many others click "Yes" having no idea that they're being charged for it, and are these sites expressly designed to take advantage of this fact? Completely. I have absolutely no doubt.
So plaintiffs file a class action, claiming that the defendants have engaged in unfair competition. That claim seems reasonable. Maybe the web site's disclosures are accurate, of course. But maybe they're not. A judge or jury would presumably apply the relevant law and figure out the scoop. If the sites are unfair, the people who are injured should get their money back. If the sites are okay, the defendants get to keep what's fair. Again, we could figure this out before law school. That's justice.
But, of course, in practice, it's not nearly that simple. The trial court refuses to certify the class. On a plethora of grounds, some of which the Ninth Circuit thinks might be okay. The district court says that the named representatives may not be typical of the class, and the Ninth Circuit agrees that there might be a class definition problem. Ultimately the Ninth Circuit affirms the dismissal of a number of the claims but remands to allow the district court to consider a recently-decided California case that interpreted the UCL (Tobacco II) to see whether, in fact, a properly-defined class might be certified.
Both the district court and (to a slightly lesser extent) the Ninth Circuit are profoundly concerned with the fact that some class members might well have gotten what they wanted. For example, Judge Fernandez's opinion says that it might have been okay (had plaintiffs gotten their act together in time) to certify a class limited to customers who told defendants that they never intended to enroll in the service at the time they cancelled their membership in the program, but that a larger class of all subscribers might be profoundly troubling. Even a class limited to those who never used the program (despite paying for it), Judge Fernandez argued, might well still fail the typicality requirement, since some people might well have deliberately enrolled in the thing but simply never got around to using it. Maybe they were lazy. Maybe they died. Who knows? We can't have people like that in the class, and no class definition timely proposed by the plaintiffs gets around this problem.
This seems to me to conflict not only with a common sense approach to litigation, but also with precedent. A class definition doesn't have to be perfect. It can include people who might not recover. Take an extreme case, for example. Imagine that a company has a web site that says, in its entirety: "Would you like a candy bar? If so, give us your credit card number so we can verify your identity and we'll ship you one." Which then charges your credit card $20 without disclosing the charge. That's perfect for a class action, right? A class should (and would) be certified for everyone who got charged the $20. Are there some people in the class who weren't injured because they would, in fact, have paid $20 even if the charge had been disclosed? Sure. Are there some people who aren't injured because they went bankrupt or failed to pay their credit card anyway? Absolutely. Are there some people who might have read the web site and assumed that they were being charged $20 -- or even $40 -- for the candy bar? Possibly. Are there some people who did not care at all about a tiny little $20 charge (Bill Gates?), or who thought it was going to a good cause anyway so wouldn't complain? Seems plausible.
But we'd still certify the class. Just because the class contains people who might not be injured doesn't mean the class fails the typicality prong. Sure, if a huge number of people in the class got what precisely what they bargained for then we've got a typicality problem. But that's not the Ticketmaster case, in which there's little doubt that the alleged failures to disclose concerned a material condition of the contract (the relevant state law standard) and might well have led a reasonable consumer to not know what s/he was purchasing. That's not enough to refuse to certify a class.
It's no different than routinely-certified securities class actions. Are there some members of the class who purchased stock in individual sales, or without reference to market prices, or who already knew about the (alleged) fraud? Sure. And at the damages stage, we can refuse to pay those people. But we don't refuse to certify the class.
The same is true here. There might well be people, for example, who used the coupons. That might be some decent evidence that they in fact intended to purchase the program, and hence weren't deceived. Those members of the class might not get paid at the end of the day -- though some of them might get paid at least a portion; e.g., if they could establish that, sure, they used the coupons, but only b/c they had already been charged, and then they immediately cancelled the thing, etc. The point is that it's a factual issue, just as it is in non-consumer class actions. Not everyone gets paid the same amount, and not every member of the class gets paid at all. That doesn't defeat the availability of class relief.
Nor should it, by the way. What's the alternative, after all? Does the candy bar seller really get to keep the millions he rips off from other people, and only have to refund the $20 to those few people who can afford to spend $300+ to file a $20 lawsuit? You mean to tell me that because we can't precisely define exactly the subset who got injured the defendant totally gets away with it? Come on.
Nor is this an exaggeration. Plaintiffs here, for example, see the handwriting on the wall and attempt (albeit belatedly) to define the class so it only consists of people who (1) cancelled the service, and (2) said at the same time as (1) that they didn't knew they had signed up. That's an incredibly small number of people -- though, given the facts, probably not a trivial number. But it means that plenty of people don't get to recover money that was (allegedly) illegally taken from them. People who simply screamed "Cancel my service you bastards!" don't get to recover. People who didn't feel like giving a reason. Lots and lots of people. Sure, you've defined the class so that virtually everyone was indeed injured. (Even then, the representative may not be typical -- after all, some people who said they cancelled b/c they didn't know what they were ordering may have in fact known after all.) But in doing so you've excluded giving compensation to a huge number of people who were in fact injured -- indeed, my guess is that you've excluded most of the people who were in fact injured. That seems neither required by the typicality rules nor the normative principle we should prefer.
Yes, at some point, we have to separate the damaged from the nondamaged. We can, and should, do that at the damage stage, at least when, as here, there's ample reason to believe that a material portion of the class -- defined as people who ordered the service -- were in fact damaged. That some of these people may not be damaged shouldn't mean that no one, or virtually no one, gets to recover. Otherwise you're creating a rule that has the practical effect of letting defendants successfully scam people with little recourse.
So here's another case where I think the right answer is the intuitive one. And even though the decision from the Ninth Circuit comes close to being the right one -- and is certainly closer than what the district court did -- I think there's definite room for improvement.
It's a good case. There's a real problem here. One the legal system is designed to solve. And the judiciary is making rules here that make things worse, not better.
Torres v. City of Madera (9th Cir. - August 22, 2011)
Some cases seem completely easy. Take, for example, the following hypothetical. An unarmed suspect is handcuffed in the back seat of a police cruiser. A police officer takes out a gun and shoots him dead. Does that violate the suspect's constitutional rights?
Yes. Yes it does. You don't need law school for that. You have a right not to be shot and killed for no reason. Seems pretty darn obvious.
Nor does that answer change because the officer wasn't trying to kill you, but instead mistakenly shot you because she couldn't tell her taser from her gun (or didn't bother to look). That might be relevant to whether you impose punitive damages, or how egregious the violation was. But it doesn't change the fact that you had a constitutional right to keep breathing and the police officer took that away from you.
It's a violation of your rights for a police officer to knock on your door, politely walk past you, and search your closet. Surely that's a lot less intrusive than killing you. I certainly know which one I'd prefer.
But notwithstanding how seemingly obvious this fact is, look how much it takes for the Ninth Circuit to hold that, yep, you can indeed sue when an officer kills you for no reason. Twenty pages. In a decision in which the court reverses a contrary finding by the district court, which held the officer immune from suit. That's a good piece of evidence that it often requires almost herculean gymnastics to be able to sue even the most severe violation of one's rights.
Admittedly, ultimately, the judiciary gets this one right. But it's depressing how much that takes. Both in terms of transaction costs and in terms of simple justice.
Sometimes one's initial impressions are correct. This is one of those times.
Yes. Yes it does. You don't need law school for that. You have a right not to be shot and killed for no reason. Seems pretty darn obvious.
Nor does that answer change because the officer wasn't trying to kill you, but instead mistakenly shot you because she couldn't tell her taser from her gun (or didn't bother to look). That might be relevant to whether you impose punitive damages, or how egregious the violation was. But it doesn't change the fact that you had a constitutional right to keep breathing and the police officer took that away from you.
It's a violation of your rights for a police officer to knock on your door, politely walk past you, and search your closet. Surely that's a lot less intrusive than killing you. I certainly know which one I'd prefer.
But notwithstanding how seemingly obvious this fact is, look how much it takes for the Ninth Circuit to hold that, yep, you can indeed sue when an officer kills you for no reason. Twenty pages. In a decision in which the court reverses a contrary finding by the district court, which held the officer immune from suit. That's a good piece of evidence that it often requires almost herculean gymnastics to be able to sue even the most severe violation of one's rights.
Admittedly, ultimately, the judiciary gets this one right. But it's depressing how much that takes. Both in terms of transaction costs and in terms of simple justice.
Sometimes one's initial impressions are correct. This is one of those times.
Friday, August 19, 2011
Ren v. Holder (9th Cir. - August 19, 2011)
It's an immigration decision authored by Judge Reinhardt. So, predictably, it . . . denies the alien's petition.
What?! As Michael Stipe (or the petitioner here) might say: It's the end of the world as we know it. Though the petitioner, unlike Stipe, probably doesn't feel fine about that.
Sure, Judge Reinhardt makes a lot of caveats and drops a lot of footnotes that are pro-petitioner in most cases. That's to be expected. But that a Reinhardt immigration opinion ends with "Petition Denied" isn't what you expect when you first start reading.
Old dog. New tricks.
What?! As Michael Stipe (or the petitioner here) might say: It's the end of the world as we know it. Though the petitioner, unlike Stipe, probably doesn't feel fine about that.
Sure, Judge Reinhardt makes a lot of caveats and drops a lot of footnotes that are pro-petitioner in most cases. That's to be expected. But that a Reinhardt immigration opinion ends with "Petition Denied" isn't what you expect when you first start reading.
Old dog. New tricks.
Thursday, August 18, 2011
Howell v. Hamilton Meats (Cal. Supreme Ct. - August 18, 2011)
Here's something I haven't seen that often.
It's a unanimous opinion by the California Supreme Court. Or, at least, the six regularly sitting justices of the California Supreme Court. Justice Klein is sitting by designation from the 2/3. She dissents. Joined by no one from the regular Court.
I can understand why that happens. After all, it's a significant case on the merits. The question comes up all the time in personal injury cases: When someone's injured, and his health insurance company pays the full bill and gets a negotiated discount, does the plaintiff get to recover just the amount paid or the full (undiscounted) amount? So even though, in a less visible (or significant) case, a justice sitting by designation might simply sign onto an opinion joined by all the regular justices, you can see why Justice Klein departs from this usual practice. Though why other justices might have done something different as well.
As for the merits, there are reasonable arguments both ways. After all, the whole point of the collateral source rule is that the tortfeasor shouldn't benefit from the fact that the victim purchased insurance; that's why he still has to pay for the medical expenses even if the victim wasn't out of pocket. On that same theory, the tortfeasor should pay the full amount. That's Justice Klein's argument (in a nutshell).
But the Court holds that discounts are different; that it'd be a windfall for the victim to recover extra money just because his insurance company got a discount. Which has a lot of sense behind it.
Critical legal scholars might have an interesting take on the Court's holding, though. Since it seems perfectly designed to protected vested interests -- e.g., making sure that the insurance company (which typically gets subrogation rights) gets fully reimbursed -- while simultaneously protecting other large entities (e.g., often, defendants liable for personal injuries, or their insurers) from incurring additional expense. The loser? The individual plaintiff. The result's perfect for insurance companies, both on the medical side as well as on the liability side. Whereas the result's far from perfect for the individual plaintiff himself.
That doesn't mean, of course, that the decision is wrong. But if you're an academic, particularly with a certain take (e.g., a critical or legal realist), you definitely might use this holding as an example of a certain approach to the law.
It's a unanimous opinion by the California Supreme Court. Or, at least, the six regularly sitting justices of the California Supreme Court. Justice Klein is sitting by designation from the 2/3. She dissents. Joined by no one from the regular Court.
I can understand why that happens. After all, it's a significant case on the merits. The question comes up all the time in personal injury cases: When someone's injured, and his health insurance company pays the full bill and gets a negotiated discount, does the plaintiff get to recover just the amount paid or the full (undiscounted) amount? So even though, in a less visible (or significant) case, a justice sitting by designation might simply sign onto an opinion joined by all the regular justices, you can see why Justice Klein departs from this usual practice. Though why other justices might have done something different as well.
As for the merits, there are reasonable arguments both ways. After all, the whole point of the collateral source rule is that the tortfeasor shouldn't benefit from the fact that the victim purchased insurance; that's why he still has to pay for the medical expenses even if the victim wasn't out of pocket. On that same theory, the tortfeasor should pay the full amount. That's Justice Klein's argument (in a nutshell).
But the Court holds that discounts are different; that it'd be a windfall for the victim to recover extra money just because his insurance company got a discount. Which has a lot of sense behind it.
Critical legal scholars might have an interesting take on the Court's holding, though. Since it seems perfectly designed to protected vested interests -- e.g., making sure that the insurance company (which typically gets subrogation rights) gets fully reimbursed -- while simultaneously protecting other large entities (e.g., often, defendants liable for personal injuries, or their insurers) from incurring additional expense. The loser? The individual plaintiff. The result's perfect for insurance companies, both on the medical side as well as on the liability side. Whereas the result's far from perfect for the individual plaintiff himself.
That doesn't mean, of course, that the decision is wrong. But if you're an academic, particularly with a certain take (e.g., a critical or legal realist), you definitely might use this holding as an example of a certain approach to the law.
Martin v. Inland Empire Utilities Agency (Cal. Ct. App. - August 18, 2011)
Hold on. I can see Dean Martin alleging age discrimination. He'd be 94 years old, after all. But racial discrimination as well?
Oh, wait. Not that Dean Martin. Another one. This one in San Bernadino, who's allegedly of "African-American Heritage."
The opinion here concerns an anti-SLAPP motion filed to part of the complaint. No one ends up looking all that great; the attorneys (who occasionally fail to include the relevant record) or the trial judge (who failed to rule on various issues and who didn't seem all that together at the oral argument).
Still, it caught my attention. It's not just a Martin. It's a Dean Martin. Memorably.
Oh, wait. Not that Dean Martin. Another one. This one in San Bernadino, who's allegedly of "African-American Heritage."
The opinion here concerns an anti-SLAPP motion filed to part of the complaint. No one ends up looking all that great; the attorneys (who occasionally fail to include the relevant record) or the trial judge (who failed to rule on various issues and who didn't seem all that together at the oral argument).
Still, it caught my attention. It's not just a Martin. It's a Dean Martin. Memorably.
Wednesday, August 17, 2011
Bullock v. Phillip Morris (Cal. Ct. App. - August 17, 2011)
It used to be that Big Tobacco eventually prevailed on all the lawsuits filed against it. Those days have passed.
It might take you, as here, over a decade of litigation. You may well, as here, die in the meantime. But when you die, on your deathbed, you will receive . . . prejudgment interest. At the statutory 10% rate.
Assuming, of course, that the California Supreme Court doesn't step in. It's a punitives multiple of 16 times. So there's a plausible claim. But my money's on the Bullock estate eventually getting its cash.
It might take you, as here, over a decade of litigation. You may well, as here, die in the meantime. But when you die, on your deathbed, you will receive . . . prejudgment interest. At the statutory 10% rate.
Assuming, of course, that the California Supreme Court doesn't step in. It's a punitives multiple of 16 times. So there's a plausible claim. But my money's on the Bullock estate eventually getting its cash.
Miranda v. Anchando (9th Cir. - August 17, 2011)
If your last name's "Miranda" and you've a party in a criminal appeal, you've got to be thinking you're looking good. 1-0 in the Supreme Court, after all.
But this Miranda is a woman. She's also filed a habeas petition arising out of her conviction in a tribal court, which you definitely don't see very often. Something different from the Miranda who changed the cop scenes in subsequent movies and television shows.
This Miranda wins below, but has the grant of habeas relief reversed by the Ninth Circuit.
So this Miranda's unsuccessful.
But this Miranda is a woman. She's also filed a habeas petition arising out of her conviction in a tribal court, which you definitely don't see very often. Something different from the Miranda who changed the cop scenes in subsequent movies and television shows.
This Miranda wins below, but has the grant of habeas relief reversed by the Ninth Circuit.
So this Miranda's unsuccessful.
Tuesday, August 16, 2011
Dougherty v. City of Covina (9th Cir. - August 16, 2011)
Does the fact that a sixth-grade school teacher allegedly looks down his students shirts (and engages in other similarly inappropriate conduct) make it likely that he possesses child pornography?
The Ninth Circuit says "No," but holds that because this wasn't clear, the officers were entitled to qualified immunity. Judge Brewster, sitting by designation from the Southern District of California, thinks the answer is "Yes." Regardless, everyone agrees that the officers had qualified immunity.
My guess is that there are lots of people who act inappropriately to their students who nonetheless do not possess kiddie porn. Probably a majority. Though surely there's a nontrivial number who do. The question seems to me to boil down to what "probable" cause means. As to which I don't think it's sufficient simply for a police officer to say that "based upon his [unnamed] experience and training" an individual probably has kiddie porn if he touches kids inappropriately. Particularly since I'm quite confident that this "experience and training" contains virtually nothing at all relevant (or even accurate) with respect to this issue.
The Ninth Circuit says "No," but holds that because this wasn't clear, the officers were entitled to qualified immunity. Judge Brewster, sitting by designation from the Southern District of California, thinks the answer is "Yes." Regardless, everyone agrees that the officers had qualified immunity.
My guess is that there are lots of people who act inappropriately to their students who nonetheless do not possess kiddie porn. Probably a majority. Though surely there's a nontrivial number who do. The question seems to me to boil down to what "probable" cause means. As to which I don't think it's sufficient simply for a police officer to say that "based upon his [unnamed] experience and training" an individual probably has kiddie porn if he touches kids inappropriately. Particularly since I'm quite confident that this "experience and training" contains virtually nothing at all relevant (or even accurate) with respect to this issue.
Monday, August 15, 2011
Nevada DOC v. Greene (9th Cir. - August 15, 2011)
Libya bans typewriters! What a classic suppression of freedom of speech.
Okay, so it's not Libya. It's Nevada.
Still. Pretty shocking, eh?
Okay, so it didn't ban them for everyone. Just prisoners.
Now it's even less shocking. Still, prisoners have First Amendment rights. Doesn't this unconstitutionally suppress speech?
Not when one Nevada prisoner killed another by using the rolling pin from a typewriter, and another attempted to stab a guard with a shank from a different typewriter. At that point, it makes sense that Nevada can tell prisoners to express their thoughts -- or legal briefs -- in old-fashioned handwriting.
Affirmed.
Okay, so it's not Libya. It's Nevada.
Still. Pretty shocking, eh?
Okay, so it didn't ban them for everyone. Just prisoners.
Now it's even less shocking. Still, prisoners have First Amendment rights. Doesn't this unconstitutionally suppress speech?
Not when one Nevada prisoner killed another by using the rolling pin from a typewriter, and another attempted to stab a guard with a shank from a different typewriter. At that point, it makes sense that Nevada can tell prisoners to express their thoughts -- or legal briefs -- in old-fashioned handwriting.
Affirmed.
Friday, August 12, 2011
In Re Marriage of Bodo (Cal. Ct. App. - August 12, 2011)
His name's Martin. So that predisposes me to want him to win.
But I'm glad he loses. The Court of Appeal holds that "substantial" and "material" -- as in, a "substantial change of circumstances" to justify a modification of child support -- mean the same thing. Which I think is correct. Indeed, if the words mean different things, I'm not sure which one's even larger. Is a "material" change greater than a "substantial" change? Or vice-versa?
But wholly apart from the words, the facts of the entire opinion reek of Martin manipulating his alleged income (with "loans" and other schemes from his privately-held corporation) in order to stiff his ex-wife. Yes, the amount he actually earns probably went down at least a little bit when economic conditions in the computer industry changed. But his efforts to manipulate things so he allegedly earns virtually nothing (and to shift assets to his mother) make it virtually impossible to tell the actual truth.
Sometimes a litigant can be his own worst enemy.
But I'm glad he loses. The Court of Appeal holds that "substantial" and "material" -- as in, a "substantial change of circumstances" to justify a modification of child support -- mean the same thing. Which I think is correct. Indeed, if the words mean different things, I'm not sure which one's even larger. Is a "material" change greater than a "substantial" change? Or vice-versa?
But wholly apart from the words, the facts of the entire opinion reek of Martin manipulating his alleged income (with "loans" and other schemes from his privately-held corporation) in order to stiff his ex-wife. Yes, the amount he actually earns probably went down at least a little bit when economic conditions in the computer industry changed. But his efforts to manipulate things so he allegedly earns virtually nothing (and to shift assets to his mother) make it virtually impossible to tell the actual truth.
Sometimes a litigant can be his own worst enemy.
Baldwin v. Sebelius (9th Cir. - August 12, 2011)
You'd think that someone challenging the individual mandate in the Patient Protection and Affordable Care Act would know enough to allege (and brief) standing correctly. It's not like this wasn't an obvious issue from the get go.
Yet here you go.
Judge Rymer holds that neither plaintiff has standing to challenge "Obamacare". She's right. So was the district court. You gotta at least grab someone that's uninsured (or has a fair risk of it). Or argue associational standing sometime before the reply brief. Otherwise you're just whining about a generalized grievance.
Yet here you go.
Judge Rymer holds that neither plaintiff has standing to challenge "Obamacare". She's right. So was the district court. You gotta at least grab someone that's uninsured (or has a fair risk of it). Or argue associational standing sometime before the reply brief. Otherwise you're just whining about a generalized grievance.
Thursday, August 11, 2011
Blue Lake Racharia v. United States (9th Cir. - August 11, 2011)
Forget gambling. Forget cigarettes. There's a much easier -- and lucrative -- way for Indian tribes to make tons of money. Help corporations evades taxes.
It works.
An Indian tribe creates a corporation owned by the Tribe. Its sole function is to hire employees and then "lease" those employees to other companies. Who hires the employees? Not the Tribe. Where do the employees work? Not on the reservation. Who do the employees work for? Formally, for the Tribe's company, but actually, the outside employer. It's as if Oracle said to its employees: "Okay, I want all of you to be formally employed by this outside entity. You'll still work here, and for me, but your paycheck will come from someone else."
Why do that? Because tribal corporation don't have to pay Federal Unemployment Tax on its employees, which is around six percent of the first slice of an employee's wages. So the company thus hoses the United States (and, secondarily, the states) for those taxes, which pay for unemployment benefits, and instead the employer and the Tribe keep for themselves (and then split) those taxes.
How much money can you make this way? Well, this case involves the Blue Lake Racharia, an Indian tribe in Humbolt County. How many members does it have? 53. How many "employees" did it have?
39,000.
That's a lot of change.
The Ninth Circuit holds that all you have to do for this scheme to work is to have some pro forma policies for your employees (don't smoke, take breaks, etc.) and get reimbursed from the real employer for all you give "your" workers (salaries, benefits, etc.) instead of having the employer pay 'em directly and you're good to go. Not hard at all. Even someone unsophisticated like me can set that up easy. Especially after reading this opinion.
So forget trading on human misery. There's an easier target out there. The government.
Perhaps it's karma. The U.S. stuck it to the tribes when it took their land. Now they're sticking it to the U.S.
It works.
An Indian tribe creates a corporation owned by the Tribe. Its sole function is to hire employees and then "lease" those employees to other companies. Who hires the employees? Not the Tribe. Where do the employees work? Not on the reservation. Who do the employees work for? Formally, for the Tribe's company, but actually, the outside employer. It's as if Oracle said to its employees: "Okay, I want all of you to be formally employed by this outside entity. You'll still work here, and for me, but your paycheck will come from someone else."
Why do that? Because tribal corporation don't have to pay Federal Unemployment Tax on its employees, which is around six percent of the first slice of an employee's wages. So the company thus hoses the United States (and, secondarily, the states) for those taxes, which pay for unemployment benefits, and instead the employer and the Tribe keep for themselves (and then split) those taxes.
How much money can you make this way? Well, this case involves the Blue Lake Racharia, an Indian tribe in Humbolt County. How many members does it have? 53. How many "employees" did it have?
39,000.
That's a lot of change.
The Ninth Circuit holds that all you have to do for this scheme to work is to have some pro forma policies for your employees (don't smoke, take breaks, etc.) and get reimbursed from the real employer for all you give "your" workers (salaries, benefits, etc.) instead of having the employer pay 'em directly and you're good to go. Not hard at all. Even someone unsophisticated like me can set that up easy. Especially after reading this opinion.
So forget trading on human misery. There's an easier target out there. The government.
Perhaps it's karma. The U.S. stuck it to the tribes when it took their land. Now they're sticking it to the U.S.
Wednesday, August 10, 2011
Foust v. San Jose Construction (Cal. Ct. App. - August 8, 2011)
When I first began reading this case, I was slightly disinclined to think that the appeal was frivolous and hence sanctionable, even though Justice Premo says on the first page that's where he's ending up. Meritless? Yes. Frivolous? Doubtful, I thought.
But when I read the opinion, I concluded that, yep, he's right. Plaintiff's appealing a loss at a bench trial on essentially factual issues, asserting that the trial court erroneously found that his written employment contract was subsequently modified. But not only, from what I can tell, is the defendant (and the trial court) probably correct on that issue, since it did indeed seem modified based on the evidence at trial -- and we grant lots of deference to trial court factual and credibility findings -- but the plaintiff didn't even include a transcript of the trial as part of the appeal. Given that fact, it does seem crazy to argue that the trial court's conclusion was erroneous; you can't prove that stuff without a transcript. So, as Yoda would say, frivolous the appeal is.
So in the end, I agree with Justice Premo. I also think the amount of the sanction seems right. Almost nine thousand in attorney's fees to the other side. More than reasonable; most appeals cost even more than that. Plus $6000 to the Court of Appeal, which is less than the average cost of $8500 for a published opinion. Spot on.
I'll nonetheless suggest one revision. Justice Premo sanctions the appellant, Foust. But Foust has a lawyer, and it's the lawyer -- not the client -- who's principally responsible for knowing that you've got to include a transcript if you're making this type of factual challenge on appeal. Maybe the client's responsible for that error as well since he hired the lawyer. But the lawyer's surely responsible as well. So I'd either sanction only the lawyer (on the theory that that's the one at fault) or the lawyer and client jointly and severally. I wouldn't just impose sanctions on the client. Particularly for an error like this.
But when I read the opinion, I concluded that, yep, he's right. Plaintiff's appealing a loss at a bench trial on essentially factual issues, asserting that the trial court erroneously found that his written employment contract was subsequently modified. But not only, from what I can tell, is the defendant (and the trial court) probably correct on that issue, since it did indeed seem modified based on the evidence at trial -- and we grant lots of deference to trial court factual and credibility findings -- but the plaintiff didn't even include a transcript of the trial as part of the appeal. Given that fact, it does seem crazy to argue that the trial court's conclusion was erroneous; you can't prove that stuff without a transcript. So, as Yoda would say, frivolous the appeal is.
So in the end, I agree with Justice Premo. I also think the amount of the sanction seems right. Almost nine thousand in attorney's fees to the other side. More than reasonable; most appeals cost even more than that. Plus $6000 to the Court of Appeal, which is less than the average cost of $8500 for a published opinion. Spot on.
I'll nonetheless suggest one revision. Justice Premo sanctions the appellant, Foust. But Foust has a lawyer, and it's the lawyer -- not the client -- who's principally responsible for knowing that you've got to include a transcript if you're making this type of factual challenge on appeal. Maybe the client's responsible for that error as well since he hired the lawyer. But the lawyer's surely responsible as well. So I'd either sanction only the lawyer (on the theory that that's the one at fault) or the lawyer and client jointly and severally. I wouldn't just impose sanctions on the client. Particularly for an error like this.
Brandt v. American Bankers Ins. Co. (9th Cir. - August 10, 2011)
I'm pretty sympatico with the approach of the federal rules towards default judgments. We like resolving cases on the merits. We don't like penalizing defendants unduly harshly if we can avoid it. We'll go ahead and vacate default judgments in a variety of settings, even when the defendant was inexplicably negligent in failing to respond to the complaint, as long as the defendant in fact has a meritorious defense and we can solve any prejudice to the plaintiff.
Which is why I liked this opinion. Yes, American Bankers Insurance Company completely biffed its response to the federal lawsuit against it. Yes, American Bankers has utterly no excuse for failing to respond.
But that doesn't stop the district court from vacating the default judgment. American Bankers had a reasonable defense to the lawsuit -- it's not like it stiffed the Brandts after their home was flooded (AB provided them with flood insurance), and the dispute is only about whether this payment was overly low. American Bankers would be severely prejudiced by not vacating the default judgment, which was for over $650,000. And the district court only agreed to vacate the default if American Bankers paid plaintiffs' attorney fees in opposing the motion for relief and the travel costs of the plaintiffs in attending a hearing, plus reimbursed the Brandts for their entire mortgage payments and an additional $1500 a month from the date the complaint was filed until the date of the order setting aside the default judgment.
That seems reasonable. The Brandts still have their lawsuit. They've also got extra money. That's more than enough. It's neither necessary nor equitable to give 'em $650,000 just because American Bankers was incompetent in responding to the complaint.
Good job by both the Ninth Circuit and the Western District of Washington.
Which is why I liked this opinion. Yes, American Bankers Insurance Company completely biffed its response to the federal lawsuit against it. Yes, American Bankers has utterly no excuse for failing to respond.
But that doesn't stop the district court from vacating the default judgment. American Bankers had a reasonable defense to the lawsuit -- it's not like it stiffed the Brandts after their home was flooded (AB provided them with flood insurance), and the dispute is only about whether this payment was overly low. American Bankers would be severely prejudiced by not vacating the default judgment, which was for over $650,000. And the district court only agreed to vacate the default if American Bankers paid plaintiffs' attorney fees in opposing the motion for relief and the travel costs of the plaintiffs in attending a hearing, plus reimbursed the Brandts for their entire mortgage payments and an additional $1500 a month from the date the complaint was filed until the date of the order setting aside the default judgment.
That seems reasonable. The Brandts still have their lawsuit. They've also got extra money. That's more than enough. It's neither necessary nor equitable to give 'em $650,000 just because American Bankers was incompetent in responding to the complaint.
Good job by both the Ninth Circuit and the Western District of Washington.
Tuesday, August 09, 2011
Salas v. Sierra Chemical Co. (Cal. Ct. App. - August 9, 2011)
This is why you should always check the plaintiff's social security number whenever you're sued in an employment case. Because it may well provide an absolute defense. Even if you indeed did something illegal.
Pitts v. Terrible Herbst, Inc. (9th Cir. - August 9, 2011)
This is why we have courts of appeal.
It's a very good opinion by Judge Bybee. Comprehensive, coherent and persuasive. He holds, among other things, that making a Rule 68 settlement offer that gives the named plaintiff in a putative class action everything s/he wants does not successfully "pick off" the representative and moot the lawsuit. His analysis is spot on.
Sure, that's also what every other circuit to have ever decided the issue has also held -- a fact that Judge Bybee notes only in a footnote at the end of his own analysis. But while the opinion is, for this reason, perhaps a little long-winded, it's only marginally so. It's like most law review articles: it retreads a ton of ground unnecessarily, but does so well. So it's not too surprising that a former law professor would write something like this.
The analysis of the other (fact-specific) claims is equally persuasive. The entire thing left me with a fairly poor impression of Chief Judge Jones (in Nevada), who made a variety of fairly clear errors in this one, and seemed almost hell-bent on dismissing this case. But, again, that's precisely the reason we have appellate courts. One person can err. So we review that person's decision with a three-judge panel. Justice often results.
As here.
It's a very good opinion by Judge Bybee. Comprehensive, coherent and persuasive. He holds, among other things, that making a Rule 68 settlement offer that gives the named plaintiff in a putative class action everything s/he wants does not successfully "pick off" the representative and moot the lawsuit. His analysis is spot on.
Sure, that's also what every other circuit to have ever decided the issue has also held -- a fact that Judge Bybee notes only in a footnote at the end of his own analysis. But while the opinion is, for this reason, perhaps a little long-winded, it's only marginally so. It's like most law review articles: it retreads a ton of ground unnecessarily, but does so well. So it's not too surprising that a former law professor would write something like this.
The analysis of the other (fact-specific) claims is equally persuasive. The entire thing left me with a fairly poor impression of Chief Judge Jones (in Nevada), who made a variety of fairly clear errors in this one, and seemed almost hell-bent on dismissing this case. But, again, that's precisely the reason we have appellate courts. One person can err. So we review that person's decision with a three-judge panel. Justice often results.
As here.
Monday, August 08, 2011
The Internet and California (9th Cir. - August 8, 2011)
Willie Fletcher authors two opinions today that make it easier to haul companies into California based upon their activities on the internet. The cases are totally unrelated, but both were argued on the same day (back in October) in Pasadena and both had the same panel. Both cases also reverse the district court's dismissal for lack of personal jurisdiction. The first case in Marvix Photo and the second is CollegeSource.
Attorneys here in California just got a little more business. Welcome to our great state, litigants.
Attorneys here in California just got a little more business. Welcome to our great state, litigants.
People v. Buza (Cal. Ct. App. - August 4, 2011)
Why write dissents? Or law review articles, for that matter?
Sometimes simply to vent. Or for credit. Or tenure.
But sometimes, they matter. Or at least get cited and seem to matter.
Here's an example of the latter. In a very good opinion by Justice Kline.
The Court of Appeal holds that it's a violation of the Fourth Amendment to take mandatory DNA samples from mere arrestees; e.g., individuals for whom there's been no determination of guilt (or even probable cause). An opinion that definitely matters.
It's worth a read.
Sometimes simply to vent. Or for credit. Or tenure.
But sometimes, they matter. Or at least get cited and seem to matter.
Here's an example of the latter. In a very good opinion by Justice Kline.
The Court of Appeal holds that it's a violation of the Fourth Amendment to take mandatory DNA samples from mere arrestees; e.g., individuals for whom there's been no determination of guilt (or even probable cause). An opinion that definitely matters.
It's worth a read.
Estate of Petter v. CIR (9th Cir. - August 4, 2011)
The (really) rich are different from us. It's a lot easier for them to evade taxes.
Friday, August 05, 2011
People v. Gourley (Cal. App. Div. - July 22, 2011)
Usually when a statute says "shall" it means "must". As it, you have to do it. Cases that so hold are legion.
But apparently not in DUI cases. Where "shall" means "if you feel like it, and if you don't, no biggie."
But apparently not in DUI cases. Where "shall" means "if you feel like it, and if you don't, no biggie."
Thursday, August 04, 2011
U.S. v. Bingham (9th Cir. - August 4, 2011)
Some people decry the "softening" of the United States. We're weak. We're flabby. We've lost our competitive edge.
What better evidence that this is indeed the case than this opinion. Which proves that even the Aryan Brotherhood is not exempt from this pervasive trend.
The AB started out as a loose collection of similarly-minded (read: racist) prison inmates, with three people at its head -- the "Council" -- who performed very limited oversight and communications roles. But, like America, it then bureaucratized. It replaced the Council with a three-person "Commission" that had more direct powers. It had lower level officials to carry out logistical tasks. Structure, structure, structure.
What was the result? The AB used to have a "blood in, blood out" policy. You had to kill to be a full member, and you left the AB only when you died. What's the rule now? You only have to show a "willingness" to kill. That's what having a bureaucratic "Commission" gets you. I blame the Democrats.
The latter-day AB even let Arva Ray, an inmate at Lompoc, be a member. He mishandled drugs. He disrespected other AB members. He had -- gasp -- openly homosexual relations. That's, again, the Democrats for you. Of course, eventually, the AB killed him. But did they simply beat him to death? No. They tried to kill him with an overdose of heroin! A virtually fun way to go. Geeze. The only saving grace, I guess, being that this wasn't working, so while he was dying, they iced him with a garrote wire. Old school. Thankfully.
Oh, sure. There are lots more murders. And the responsible AB members get convicted. But how does the story end? With the leaders being sentenced to death? Nope. Life in prison.
No wonder we're losing to China.
What better evidence that this is indeed the case than this opinion. Which proves that even the Aryan Brotherhood is not exempt from this pervasive trend.
The AB started out as a loose collection of similarly-minded (read: racist) prison inmates, with three people at its head -- the "Council" -- who performed very limited oversight and communications roles. But, like America, it then bureaucratized. It replaced the Council with a three-person "Commission" that had more direct powers. It had lower level officials to carry out logistical tasks. Structure, structure, structure.
What was the result? The AB used to have a "blood in, blood out" policy. You had to kill to be a full member, and you left the AB only when you died. What's the rule now? You only have to show a "willingness" to kill. That's what having a bureaucratic "Commission" gets you. I blame the Democrats.
The latter-day AB even let Arva Ray, an inmate at Lompoc, be a member. He mishandled drugs. He disrespected other AB members. He had -- gasp -- openly homosexual relations. That's, again, the Democrats for you. Of course, eventually, the AB killed him. But did they simply beat him to death? No. They tried to kill him with an overdose of heroin! A virtually fun way to go. Geeze. The only saving grace, I guess, being that this wasn't working, so while he was dying, they iced him with a garrote wire. Old school. Thankfully.
Oh, sure. There are lots more murders. And the responsible AB members get convicted. But how does the story end? With the leaders being sentenced to death? Nope. Life in prison.
No wonder we're losing to China.
Wednesday, August 03, 2011
Perfect 10, Inc. v. Google (9th Cir. - August 3, 2011)
Michael Cera gives sound advice in Superbad when he says: "You could always subscribe to a site like Perfect 10. I mean, that could be anything. It could be a bowling site."
It's in fact a pay-per-pornography site. And after today's Ninth Circuit opinion, he could give even better counsel. "Save your money. Just look for infringing sites that have copies of those pictures, and even if Perfect 10 sent a takedown notice to Google, just check out chillingeffects.org, where Google sends the takedown notice alongside the URL of the infringing site. Go there. Enjoy."
By the way, business doesn't look good for Perfect 10. Revenues have been declining. They say infringement. I mnight say glut of internet pornography instead.
It's in fact a pay-per-pornography site. And after today's Ninth Circuit opinion, he could give even better counsel. "Save your money. Just look for infringing sites that have copies of those pictures, and even if Perfect 10 sent a takedown notice to Google, just check out chillingeffects.org, where Google sends the takedown notice alongside the URL of the infringing site. Go there. Enjoy."
By the way, business doesn't look good for Perfect 10. Revenues have been declining. They say infringement. I mnight say glut of internet pornography instead.
Tuesday, August 02, 2011
Lee v. Lampert (9th Cir. - Aug. 2, 2011)
Everyone agrees that Richard Lee doesn't show enough evidence of "actual innocence" to justify extending the limitations period for filing a federal habeas claim. But everyone -- or, more accurately, nearly everyone -- on the eleven member en banc panel agrees that if he had shown enough such evidence, that would extend the limitations period. Thus reversing the panel, which held that even if he was actually innocent, the limitations period would bar relief.
Chief Judge Kozinski's the odd person out. He concurs, saying that we should wait until someone's maybe innocent to decide the question.
Proving that the guy doesn't mind being alone.
Seems to me that we routinely decide legal questions even when the facts might not justify relief. Even in the old days. Marbury comes to mind.
Chief Judge Kozinski's the odd person out. He concurs, saying that we should wait until someone's maybe innocent to decide the question.
Proving that the guy doesn't mind being alone.
Seems to me that we routinely decide legal questions even when the facts might not justify relief. Even in the old days. Marbury comes to mind.
Monday, August 01, 2011
City of Woodlake v. Tulare County Grand Jury (Cal. Ct. App. - August 1, 2011)
Some captions are pretty good teasers. Like this one. What the heck is the City of Woodlake doing litigating against the Tulare County Grand Jury?! Inquiring minds definitely want to know.
It's a neat little case. In 2009, officers from the Woodlake Police were shooting at a firing range and a bullet apparently fired from this range hit a civilian, Leland Perryman, a mile away. Talk about bad luck. Or, potentially, negligence.
Amongst the fallout from this event was an investigation by the Tulare Grand Jury, which wanted to see who (if anyone) was responsible for Perryman's injury. So they understandably issued a pretty reasonable subpoena to Woodlake trying to discover the rules that existed at the shooting range, the layout of the facility, etc. To which the City of Woodlake promptly responded by . . . stonewalling. Moving to quash the grand jury's subpoena.
Glad to see law enforcement keenly concerned about making sure a grand jury can't do its job.
The trial court quashed the subpoena but the Court of Appeal reverses. A grand jury doesn't have to demonstrate "good cause" to issue a subpoena. That's its function. It doesn't have to justify what it wants to look at in advance, or follow the usual rules for civil subpoenas.
Good opinion by Justice Detjen.
It's a neat little case. In 2009, officers from the Woodlake Police were shooting at a firing range and a bullet apparently fired from this range hit a civilian, Leland Perryman, a mile away. Talk about bad luck. Or, potentially, negligence.
Amongst the fallout from this event was an investigation by the Tulare Grand Jury, which wanted to see who (if anyone) was responsible for Perryman's injury. So they understandably issued a pretty reasonable subpoena to Woodlake trying to discover the rules that existed at the shooting range, the layout of the facility, etc. To which the City of Woodlake promptly responded by . . . stonewalling. Moving to quash the grand jury's subpoena.
Glad to see law enforcement keenly concerned about making sure a grand jury can't do its job.
The trial court quashed the subpoena but the Court of Appeal reverses. A grand jury doesn't have to demonstrate "good cause" to issue a subpoena. That's its function. It doesn't have to justify what it wants to look at in advance, or follow the usual rules for civil subpoenas.
Good opinion by Justice Detjen.
Stark v. Superior Court (Cal. Supreme Ct. - August 1, 2011)
Everyone always tells you that ignorance of the law is no excuse. But sometimes it is. At least when the statute at issue incorporates concepts of legal duties and when your ignorance of those legalities doesn't constitute criminal negligence.
Here's an example. Proving that for every maxim, however seemingly universal, there's typically at least one exception.
Here's an example. Proving that for every maxim, however seemingly universal, there's typically at least one exception.
Subscribe to:
Posts (Atom)